Van Dyk v. Mosterdt
| Decision Date | 23 June 1915 |
| Docket Number | 30149 |
| Citation | 153 N.W. 206,171 Iowa 3 |
| Parties | AALT VAN DYK et al., Appellees, v. G. MOSTERDT, Appellant |
| Court | Iowa Supreme Court |
Appeal from Sioux District Court.--HON WM. HUTCHINSON, Judge.
ACTION to recover damages for negligence resulting in the death of plaintiff's horse. Judgment for the plaintiffs. Defendant appeals.
Affirmed.
J. U Sammis and P. D. Van Oosterhout, for appellees.
Gerrit Klay, for appellant.
On the 20th day of August, 1913, Aalt Van Dyk brought an action in the district court claiming that he was the owner of a half interest in a certain stallion; that, at the close of the season of 1912, he turned the stallion over to the care and custody of the defendant; that defendant was a practical horseman and had dealt with horses to a considerable extent for a number of years; that the defendant took the stallion into his custody and care; that, about the middle of the month of August, he undertook to haul sand with the stallion to his farm, a distance of four miles; that the stallion was a very heavy horse, weighing about 1,900 pounds; that the weather was extremely hot, ranging between ninety and one hundred degrees temperature; that the defendant negligently hitched the horse with a light horse and put the same in charge of a green hand, or hired man not accustomed to driving horses, and proceeded to haul sand as aforesaid; that the horse was negligently and carelessly overdriven and overtaxed as a result of the use to which he was put, and, by reason of the unskillfulness of the driver, said stallion became overheated and died on the road between Rock Valley and defendant's farm by reason of the negligence of the defendant aforesaid; that the value of the half interest in the horse was $ 500; that, in the death of the horse, he was damaged to that extent, and demands judgment for $ 500.
Defendant answered this petition, denying each and every allegation, and further pleading that plaintiff and one Jacob Van Beek were partners in the ownership of said stallion; that they, the partners, used said stallion for services during the season of 1912, and up to the 1st of July, 1912, and together paid the expenses and shared the profits and losses connected with said use; that on or about the 15th day of February, 1912, said partners made an oral agreement with the defendant, whereby defendant was to feed and furnish stable room for said horse whenever said partners should desire to keep said stallion at defendant's place, during the season and for the balance of the year; that, in consideration of said feed and stable room, defendant was entitled to use said stallion in ordinary farm work, and to breed the same to his mares free of charge; that after the 1st of July, 1912, and up to the time said horse died, Jacob Van Beek, one of the partners, was living at defendant's house, and had charge and supervision of said stallion while working for defendant.
Upon these issues, the plaintiff introduced his testimony. At the conclusion of plaintiff's testimony, and after plaintiff had rested, the defendant filed a motion for an instructed verdict, upon the grounds, among others, that the evidence conclusively showed that the stallion in question was held in partnership; that the partnership affairs were not settled, and no accounting had been had. Thereupon the plaintiff, through his attorney, made the following statement:
To which the court said:
"Well, these parties being present in court, the plaintiff may have a little time to amend and bring them in. " (To all of which the defendant excepts.)
Thereupon an amended and substituted petition was filed in the name of the partnership, stating the cause of action substantially as set out in the original petition, and basing the right to recover upon the same facts therein alleged, but asking for judgment in favor of the partnership for the full value of the stallion.
Thereupon, Jacob Van Beek, the other partner, who was joined in the suit, filed a motion asking that his name be stricken from the record, stating that he refused to be a party to the record, and alleging facts which tended to exonerate the defendant from liability for the loss of the horse, and alleging that he, Van Beek, directed the use of the horse and the manner in which it was used. On motion of plaintiff, this motion was stricken from the record. Thereupon, Jacob Van Beek filed an amendment to the amended and substituted petition as follows:
"That on the 20th day of August, 1912, the plaintiff Jacob Van Beek ordered one Lockhorst to hitch the stallion belonging to plaintiff to the wagon and haul a load of sand from Rock Valley, Iowa; that said Lockhorst did so use said horse with the full consent and authority of the plaintiff; that the use of said horse and in said manner was unknown to the defendant G. Mosterdt; that the said Lockhorst used said horse in hauling said sand in a careful and prudent manner, and was not in any way negligent in the use of said horse, and that the death of said horse was in no way caused in the manner of its use or by any negligency of the party using it or the said G. Mosterdt, defendant."
Upon the motion of the plaintiff, this amendment filed by Van Beek was stricken from the record, on the ground that he was seeking to set up a defense for the defendant, to which Van Beek excepted.
Thereupon, the defendant filed an answer to the amended and substituted petition of the plaintiff, in which he denied every allegation, admitted that the plaintiffs were partners, alleging that they bought the stallion in controversy from the defendant for $ 800, and that the defendant agreed to board and care for the stallion until March 1, 1913, and further answered that on the 20th day of August, 1912, plaintiffs, without any knowledge on the part of the defendant, instructed one Lockhorst, who was then in the employ of the defendant, to use said horse and haul the sand from Rock Valley, Iowa; that the plaintiffs were present when said sand was hauled, and had full knowledge of the manner in which said horse was used and authorized and directed the use of the horse, of which they now complain, and which they allege caused its death; that the plaintiffs are now estopped from claiming any negligence on the part of the defendant, and that if there was any negligence in the manner of its use, it was due to their own contributory negligence.
Thereupon, without further objection, the cause proceeded to final trial, defendant introducing evidence in defense, and the plaintiffs introducing evidence in rebuttal, and the defendant, evidence in surrebuttal, at the conclusion of which both parties rested.
Thereupon the defendant filed the following motion:
This was by the court overruled. Thereupon, the cause was submitted to the jury with instructions from the court. The jury returned a verdict for the plaintiffs. Judgment being entered upon the verdict, defendant appeals, and assigns the following grounds for reversal:
(1) The court erred in overruling defendant's motion to direct a verdict at the close of plaintiff Van Dyk's case, and in permitting him, over defendant's objection, to bring in a new party plaintiff.
(2) The court erred in overruling plaintiff Van Beek's motion to strike his name as party plaintiff.
(3) The court erred in striking the amendment of plaintiff Van Beek from the files.
(4) The court erred in overruling defendant's motion to direct a verdict at the close of all the testimony.
(5) The court erred in refusing to give the instruction asked for by defendant.
(6) The court erred in giving instruction No. 8 to the jury.
(7) The court erred...
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